Freshwater: Oral arguments on sanctions reconsideration

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Oral arguments on a motion to reconsider the sanctions levied against R. Kelly Hamilton and John Freshwater were heard in federal district court yesterday, July 29, 2010.

[Edit on August 1: See the Addendum in this comment. Hamilton has an interesting conception of what can be true.]

Background

Recall that on June 1, 2010, federal district Judge Gregory Frost issued an order granting the plaintiffs’ (Dennis family) motion to impose sanctions on Freshwater and Hamilton for failure to comply with the requirements of the discovery process in Doe v. Mount Vernon Board of Education, et al.. The sanction was basically to pay the Dennises $29K in attorney fees and costs associated with Freshwater’s and Hamilton’s failure to comply with discovery requests. The order also instructed Freshwater and Hamilton to comply with those requests. The sanctions were imposed following a hearing that Hamilton failed to attend due to two flat tires.

Freshwater and Hamilton subsequently filed a motion to reconsider sanctions, arguing that they had done their best, and the Dennises, via their attorney, Douglas Mansfield, filed a memorandum in opposition. The purpose of the hearing on July 29 was to hear oral arguments and testimony on the dispute. Bear in mind that the focus of the hearing is the discovery issue, and not a general hearing on the larger case.

The principals present in the court were John Freshwater and his attorney R. Kelly Hamilton at the defense table and the Dennis family (Steve, Jenifer and Zachary) and their two attorneys from Jones Day at the plaintiff table, with Douglas Mansfield being the lead attorney and Matt Johnson assisting him. The presiding judge is Gregory L. Frost, appointed to the federal bench by President Clinton in 1999.

More below the fold.

Opening arguments

Judge Frost introduced the proceedings by briefly reviewing the history leading to the current state of affairs and listing the materials he had ordered to be produced by Freshwater and Hamilton (listed in his order here. The materials included

(1) Hamilton’s billing records “for anything relevant to the drafting or preparation of the 15 affidavits” that Freshwater and Hamilton claim were prepared between May 15 and May 25, 2008 as preparation for a second interview with HR OnCall in its investigation of the matter for the Board of Education;

(2) the Ten Commandments book cover displayed in the window of Freshwater’s classroom;

(3) any other materials “previously ordered to be produced, including any handwritten notes, religious materials, and textbooks”; and

(4) “copies of all the materials they [Freshwater and Hamilton] copied at Freshwater’s church and affidavits, if necessary, to explain why these documents cannot be produced by June 16, 2010.”

In addition, the judge’s order put Freshwater and Hamilton on notice that failure to comply could trigger more severe sanctions, including an adverse evidentiary inference that all materials not produced would be interpreted in the trial as supporting the plaintiffs’ case.

Opening statements

Hamilton and Mansfield both made opening arguments outlining their positions, Hamilton going first. Hamilton remarked as he started that it was good to be here, and the judge responded that he was glad Hamilton could make it.

Hamilton began by saying he hoped to dispel any animus the judge felt toward him. Judge Frost responded that he felt no more animus toward Hamilton than he does toward any lawyer.

Hamilton then spoke to the court about “truth,” basically rehashing a section of his reply to Mansfield’s memorandum. Hamilton went on to disparage Freshwater’s verbal skills, saying that “an attorney can’t demand that a client be artful in his presentation” and that Freshwater isn’t particularly articulate: “John Freshwater is not an artful speaker by any stretch of the imagination.” (See also Hamilton’s characterization of Freshwater here.)

Hamilton said that the day after a telephone conference about the discovery issue with the judge and Mansfield on April 21, 2010, he went to Freshwater’s home and searched his house and barn for any materials that might be responsive to the discovery requests, and found none.

With respect to his billing records, Hamilton said “We simply do not have any billing information for May 2008.” (Recall the Flood.)

There was a short reprise of Hamilton’s ‘truthfulness’ theme, and then Hamilton claimed that two affidavits about the discovery matter from him and Freshwater really had been attached to a document he gave Mansfield at the state administrative hearing. Mansfield and two other attorneys from his firm who were involved then have previously averred to the federal court that no such affidavits were attached to that document (I can’t find that asseveration in a document at the moment).

Finally, Hamilton made an odd statement that I transcribed in my notes as “My understanding is that John Freshwater is no longer in this matter.” (The quote may not be exact.) That echoes Hamilton’s repeated use of an interesting paragraph in his Counsel’s reply:

On Tuesday, July 6, 2010, the undersigned learned from communications with Attorney Sandra McIntosh that a resolution in this matter occurred on Friday, July 2, 2010, which will include resolving any concerns against John Freshwater alleged in Plaintiff’s Memorandum of Opposition (Doc. 114).

No further comments on that occurred in this hearing.

In Mansfield’s opening statement he first said that Hamilton was trying to relitigate something that had already been litigated, the failure to comply with discovery orders.

With respect to the billing records issue, he said that there were so many inconsistencies it was “hard to parse it all.” He said that “The flood doesn’t ring true” – some (but not all) billing records for the relevant period were produced to the Board of Education’s attorney two months after the flood. Mansfield said that “it is disingenuous” to claim so late that there were two different billing arrangements. Hamilton didn’t tell the Board of Education’s attorneys about that during settlement talks with them when he produced the partial records.

He reiterated the assertion that the two affidavits from Hamilton and Freshwater were not attached to any document given him at the administrative hearing as Hamilton claimed they were, and ended by repeating that Hamilton was “simply trying to relitigate something that’s already been litigated.”

Hamilton and Mansfield then proceeded to question three witnesses, John Freshwater called by Hamilton, and Steve Short (Superintendent of Mt. Vernon City Schools) and David Millstone (the Board’s attorney for the administrative hearing), both called by Mansfield.

Freshwater testimony; direct examination

Hamilton first asked Freshwater about the May 26 hearing that Hamilton missed due to two flat tires. Freshwater testified that he received the call from Hamilton about the tires and passed that information on to Sandy McIntosh, one of the attorneys retained by the insurance company to defend Freshwater in Doe v. Mount Vernon Board of Education, et al. Freshwater testified that he thought the hearing went well for him and he was surprised later at the imposition of sanctions. Asked why he was surprised, he said it was because Mansfield hadn’t called any witnesses in the hearing.

Hamilton asked Freshwater if there was new evidence today bearing on the motion to reconsider sanctions, and he replied that there was (though we didn’t hear that new evidence explicitly identified as far as I could tell). Asked why the new evidence was relevant, Freshwater replied that it would “bring clarity” (one of his favorite phrases) to the matter of sanctions and correct an injustice.

Hamilton then questioned Freshwater about the multiple fee agreements he signed in 2008. There were four such agreements, the first in April 2008 with Roger Weaver and Hamilton, the second in May 2008 with Hamilton alone after Weaver was let go, and a third and fourth later in 2008.

Hamilton asked why there were multiple fee agreements. Freshwater replied that the first was with two attorneys, Weaver and Hamilton, signed on April 17, 2008 (the day after Freshwater’s public statement (pdf) (photo of delivery) on the square in Mt. Vernon). When it became apparent that he couldn’t work with Weaver and there was conflict between Weaver and Hamilton, he let Weaver go and signed a second agreement with Hamilton alone on May 19, 2008, for work associated with the HR OnCall investigation and the 15 disputed affidavits. Because of some sort of fee payment dispute between Weaver and Hamilton, Freshwater signed a third agreement with Hamilton on June 26, 2008, allowing Hamilton to re-bill Freshwater at a higher rate ($275/hour vs. $175/hour) for work performed (as I understood it) during the term of the first agreement to “do the legal” (Freshwater’s phrase). This third agreement included an amendment regarding liens against Freshwater’s property as security for Hamilton’s fees. The fourth agreement was signed on Dec 29, 2008, for Hamilton to represent Freshwater’s daughter Jordan (she testified in the administrative hearing in January 2009.)

Freshwater testified that the possibility of him filing a “comprehensive response” to allegations, a right specified in the master contract with the Board of Education, was raised by the union representative in his May 15, 2008, interview with HR OnCall. Hence he retained Hamilton (agreement 2) to help with the preparation of that comprehensive response in anticipation of a second interview with HR OnCall scheduled for May 28, 2008, an interview that was subsequently canceled. Freshwater testified that he never thought the case would go as far as it has.

Hamilton asked Freshwater if it was all right if the judge reviewed the four fee agreements in camera. They are protected by attorney-client privilege and Hamilton was asking Freshwater for a limited waiver of that privilege. The judge asked Mansfield if he had any objection, and Mansfield replied that he didn’t so long as he also could review them in confidence. The ground here is that those agreements may have evidentiary implications, and not allowing one side to see them while the judge does see them would be unfair to the plaintiffs. The judge asked Freshwater if he objected to Mansfield seeing them, and Freshwater replied that he did object.

Hamilton interjected that he was “in a strange position” being both Freshwater’s attorney in the proceeding but also being there “in my own interest.” The judge replied “That’s by your own doing, Mr. Hamilton.”

Hamilton then said that “I cannot in my own interest advise John Freshwater to waive attorney-client privilege” in this respect. The judge said to give him the four agreements in a sealed envelope and that “the Court will consider the matter.”

Hamilton asked Freshwater if he ever envisioned Hamilton being his defense counsel in Doe v. Mount Vernon Board of Education, et al., and he replied he had not, but only for the counterclaim Freshwater made. Hamilton asked if he had separate representation for the counterclaim and the defense, and Freshwater replied that he did, that Hamilton represented him for the counterclaim and attorneys retained by the insurance company for the defense. Hamilton asked if Freshwater had conferences with the insurance company attorneys without Hamilton being present, and he replied that he did.

To explain Hamilton’s active participation in the pre-trial mediation, Freshwater testified that during that conference he became upset with the insurance company attorneys, and during a break he asked Hamilton to “speak up.”

This line of questions was aimed at the issue of whether Hamilton was acting for Freshwater in the Doe suit for a while, particularly during the mediation conference Judge Frost held. Hamilton claims that he never held himself out as Freshwater’s counsel in that matter, and the judge told Hamilton he certainly had that impression and he had never been told differently.

Mansfield objected to this line of questioning on the ground that it was irrelevant to the matter under consideration in the hearing. The judge said to Hamilton “I thought you did [represent Freshwater] during that mediation. No one told me you were representing Freshwater only in reference to the counterclaim. I don’t see any relevance to the motion for reconsideration.” He sustained the objection.

Hamilton asked about the conflict with Jason Deschler (the previous insurance company attorney). Freshwater said that Deschler wanted to settle, and wouldn’t call witnesses Freshwater wanted to be called. (Back story: Among other things Freshwater wanted Deschler to call the parade of students Hamilton called in the administrative hearing. Deschler apparently felt–rightly, IMO–that they were irrelevant to the questions at issue in the federal suit.)

Returning to the fee agreements, Hamilton asked how many hours Freshwater was billed for under the second agreement that covered the affidavit preparation period. Freshwater replied 57. Asked how he paid, he said $9,975, paid in two installments of $5,000 on November 12 and 13, 2008 (we saw the bank statement). He said Hamilton was to apply the extra $25 to his continuing legal bill.

Hamilton asked if those payments were for work in connection with preparation of the affidavits, and Freshwater agreed they were. Hamilton asked if those payments “were different and separate” from the billing information provided in March 2009 to Sarah Moore, the Board of Education’s attorney, and he replied that they were. He said the $10,000 was for the affidavits while the billing information given to Moore “was for legal.” It was never made clear what that distinction was supposed to mean. My conjecture is that the information was provided to Moore during settlement talks for the federal suit, and that the work on the affidavits was not considered to be part of the legal costs Freshwater incurred for the federal suit and hence are considered (by Hamilton, anyway) to be irrelevant to those talks and thus were not provided. However, none of this explains how some of Hamilton’s billing information survived the Flood.

Hamilton asked if Freshwater still had an outstanding legal fee balance, and he replied that he did.

Hamilton asked Freshwater when the 15 affidavits were prepared. He said between May 19, 2008, and May 25, 2008. Hamilton asked if Freshwater was surprised that the investigation ended before interviewing him a second time. He replied that he was. Asked, he characterized the lack of a second interview as a failure of the investigators and the school administration.

Referring to handwritten notes Freshwater made on his meetings concerning this matter during February-May 2008 that were the subject of a discovery request from the plaintiffs, Freshwater testified that he left them in his classroom at the end of that school year and he never returned to pick them up. (AFAIK they were not found in the 16 boxes of material removed from Freshwater’s room by custodians under the supervision of Superintendent Short in August 2008. IIRC several of them were introduced as evidence in the administrative hearing–I can’t find that in my notes just now.)

Asked, Freshwater testified that he planned to show his handwritten notes to HR OnCall in the second interview but never had the chance because it was canceled.

In several places it seemed apparent (to me at least) that Hamilton was using Freshwater’s testimony to attempt to shield himself from culpability in the discovery noncompliance issue (See above, Hamilton’s “strange position” remark). For example, in this sequence of questions he asked Freshwater if he (Hamilton) reviewed all of the handwritten notes Freshwater made. Freshwater replied “Not necessarily.” That’s wholly irrelevant except to get on the record that (a) Hamilton didn’t have ready access to, or full knowledge of the notes and (b) Freshwater did. Those notes were one of the specific items mentioned in Judge Frost’s order to Hamilton and Freshwater to produce in discovery, and Hamilton was implying that he himself couldn’t have produced them. I don’t think Freshwater was aware of this aspect of Hamilton’s questions at any point.

Describing the affidavit preparation process, Freshwater testified that he and Hamilton met at his Assemblies of God church and at his home. Hamilton would give Freshwater a list of questions and Freshwater would write out his answers. Later Hamilton would print typed versions of the answers, Freshwater would check them, and then swear and sign them. He said he would sometimes take Hamilton’s questions home or to school to work on them during breaks.

Hamilton asked if Freshwater was aware that there was a telephone conference between the attorneys and Judge Frost on April 21, 2010. He was. Did Hamilton subsequently emphasize to Freshwater the necessity to make no mistakes in responding to the Court’s order? Yes. Freshwater testified that on April 22, 2010, Hamilton came to his house and gave him questions to answer regarding his prospective response to the Court’s order. Freshwater testified that Hamilton went through Freshwater’s house and barn searching for relevant material, including going through drawers in Freshwater’s dresser though not his wife’s dresser drawers. (Yes, that was specified in the testimony.)

With respect to the “five armloads” of personal possessions Freshwater received from Superintendent Short selected by Short from the boxes of material removed from his classroom, Freshwater testifed that he believes the inventory that Short prepared as he selected that material is inaccurate. He said there were misspellings in the inventory that he didn’t believe Short would make. A scan of the inventory is page 5 here (8 MB pdf). I see no striking misspellings.

We parsed “pitched” again. Freshwater had previously testified in the administrative hearing that he “pitched” the material Short had given him. Later he testified in that hearing that “pitched” was a term of art from his smoke jumping days and meant ‘tossed to another place’ or something to that effect, and didn’t mean “discarded.” He said he had put the material in a garbage can lined with a plastic bag in his barn and discarded only some letters from Chinese correspondents that were water-damaged. (See here under “Freshwater redirect.”)

The basic argument through this sequence of testimony was that Freshwater/Hamilton didn’t have any of the material–it was left in Freshwater’s classroom at the end of the 2007-2008 school year, Freshwater didn’t return to his room to retrieve it, and it wasn’t in the 16 boxes of material from his classroom that Hamilton and Freshwater exhaustively examined in early 2010 at the district office. That included some creationist books (Icons of Evolution, Lies in the Textbooks, Refuting Evolution, etc.) and Kent Hovind’s video “Ten Lies of Evolution.” He said they were left in the classroom but weren’t in the materials at the district office. He said that was a video his daughter might have brought in, and when asked where it is now he replied “Ask the administration.”

Hamilton asked if Freshwater had made an effort to pay the fees the Court’s sanctions required. He replied that he had, that he had offered a lien on his property. Asked about his current financial situation, Freshwater said “I’m on the verge of bankruptcy.”

Hamilton displayed a nail taken from a plastic bag and asked if Freshwater recognized it. Freshwater replied that it was a nail brought by a mechanic to Freshwater and Hamilton at a WalMart service center where Hamilton’s tires were being repaired. After the May 26, 2010, hearing that Hamilton missed, he called Freshwater who was on his way back to Mt. Vernon. Freshwater turned around and drove to the Grove City WalMart where Hamilton was waiting for his tire repairs to be finished, and there saw the infamous nail. Again, this has nothing to do with the topic of the hearing that I can see, but seems to be aimed at getting Hamilton off the hook for missing the previous hearing.

Hamilton asked Freshwater why discovery issues were taking so much time and effort. In response Freshwater said it was partly because Hamilton was occupied with the administrative hearing, and that “this is just a way of keeping you [Hamilton] busy.” He said the law firms on the other side are collaborating with one another while on his side it’s just Freshwater and Hamilton [no, he didn’t explicitly mention David and Goliath, though I expected it here]. “They throw stuff at us to keep us busy and now is the state [administrative] hearing and the massive brief for it.”

Freshwater cross examination

In cross examination Mansfield initially focused on some specific documents sought in discovery. First he asked Freshwater about “Finding Common Ground,” the text used in a “Religion in the Classroom” course taught by David Daubenmire (!!!) at the Mt. Vernon Nazarene University taken by Freshwater in 2004. Mansfield established that in a deposition on October 14, 2009, Freshwater said he didn’t know where his text was. However, that text was introduced into evidence in the administrative hearing and was subject to discovery in the federal suit. Freshwater did not turn it over to Mansfield until May, 2010, a month after the Court granted a motion to compel in April, 2010. Freshwater said he didn’t recall what he said in the 2009 deposition. Mansfield asked “You weren’t forthcoming with that text, right?” Freshwater’s answer was vague, saying something to the effect that he wasn’t sure if it was at home or at school. (The discovery order specified materials removed from the school.)

Returning to the question of “pitched,” Mansfield asked if the “pitched” material wasn’t provided until May 2010. Freshwater agreed, saying he gave it to Jason Deschler, his previous defense attorney for the federal suit, and Deschler gave it to the new attorney from the insurance company. Hamilton objected at this point, saying at some length what Freshwater did or did not know. Judge Frost interrupted him, telling him to sit down. The judge told Hamilton that he can’t stand up and in his objection tell Freshwater what to say.

Another discovery request was for any audio tapes made of conversations during that period. Mansfield asked if Freshwater had taped his conversations with Steve Hughes, and Freshwater agreed that he had. Any others? Yes, the interview with HR OnCall. Others? Not by Freshwater.

Mansfield asked if Freshwater was aware of Hamilton taping conversations with witnesses. He was not.

Then we returned to the morass of the fee agreements. Hamilton asked if the billing for preparation of the affidavits was the subject of the second fee agreement. Freshwater replied that it was. Mansfield asked if Freshwater received a bill for those services. Freshwater replied that those billing records were destroyed. Judge Frost interjected, telling Freshwater that wasn’t the question. Freshwater said that his wife does most of that. “I’m having difficulty recalling if I actually saw a bill.” He said he couldn’t remember if Hamilton told him verbally what was owed or if it was written. He said “I don’t have that bill any longer.”

Mansfield asked how many hours a day was devoted to preparing the affidavits. Freshwater couldn’t recall. A considerable number? Yes. Mansfield asked if that was also the period during which Freshwater had testified to listening to the tape of his interview with HR OnCall at least 10 times at 2.5 hours per time. It was. Mansfield asked if school was also in session during that week. It was, 7:15 am to 3:00 pm. Freshwater said that was a very busy time for him.

Mansfield asked if the affidavits were prepared as Freshwater’s “comprehensive response” for the investigation, and he agreed they were. Mansfield asked when that second interview with the investigators was scheduled for. May 28, 2008. Mansfield asked if Freshwater gave the affidavits to anyone prior to May 28. He did not. Mansfield asked whether after the second interview was canceled Freshwater gave the affidavits to anyone. He did not. Mansfield noted that the first provision of the affidavits to anyone was in late 2009 in the administrative hearing and that no one had seen them or heard of them prior to that.

Regarding the hand written notes Freshwater kept of meetings from Feb-May 2008, Mansfield asked if they were copied at the church. Freshwater agreed that they were. Recall that materials copied at the church were subject to the discovery order. Those copies were not produced in discovery.

Freshwater did not recall seeing Hamilton give Mansfield the document to which the two affidavits were allegedly attached at the administrative hearing.

Asked, Freshwater testified that the Ten Commandments book cover, the “motivational posters with Bible verses, and the creationist tapes and books were not in the 16 boxes of material removed from his classroom in August 2008.

Freshwater agreed that the Tesla coil was in his room. Asked if he was told by the administration to remove it and not use it again, Freshwater said “I don’t know of ‘remove’ is the right word.” Recall that previously Freshwater has claimed that he was told to destroy the Tesla coil and he said he did so, battering it with a rock in his classroom and throwing it in a trash can. He later retrieved it from the trash can, took it home, and finally gave it to Hamilton. It was finally produced, in pieces, at the administrative hearing. Again, the discovery order specified materials removed from Freshwater’s room, and the Tesla coil was not produced in response to that order.

Mansfield asked if copies from pages of textbooks made at the church were from Freshwater’s teacher’s edition. He agreed they were.

We then spent a good deal of time on the sequence of events on May 26, 2010, when Hamilton missed the hearing on the original motion for sanctions. Freshwater testified that he got a call from Hamilton informing him of the misfortune, and that he passed that information on to Sandy McIntosh, his insurance company lawyer. Hamilton did not appear at the hearing, and when it adjourned Freshwater left for Mt. Vernon around 10:40 am. Hamilton called him again asking him to come to the WalMart service center in Grove City, south of Columbus. Freshwater testified that he turned around and went there. He agreed that he would have arrived there sometime around 11:30 am.

Mansfield turned to the sanctions and asked if Freshwater had attempted to pay the $28,000+ costs ordered by the Court. He replied that he had. Asked if he had submitted the lien proffered as satisfying the Court’s requirement to a court for judgment of entry, Freshwater replied “Kelly decided on that.” Mansfield asked if Freshwater was aware that the parcel offered in the lien is ‘landlocked’–wholly surrounded by other parcels owned by Freshwater. He said he wasn’t sure of that.

Freshwater redirect

Hamilton asked if Freshwater recalled the original discovery request from Jessica Philemond, the Dennises previous attorney, for material removed from Freshwaters classroom within a specific time period. Freshwater couldn’t recall.

Hamilton asked if he ever permanently removed anything from his classroom to conceal it, and he testified he did not.

Hamilton asked what Freshwater knew about including the liens on his property in preparing his 2008 taxes. He replied, “Very little.” He testified that his taxes were prepared by a man from New Philadelphia (where his parents live), by a man whose first name he couldn’t recall. He did take a deduction for legal fees, and has disclosed his tax return to the plaintiffs in response to a discovery demand.

Hamilton asked if Freshwater gave the affidavits to anyone, and he said he did not. Asked, he agreed that no one asked for them. (Of course one must bear in mind that no one knew about them!)

Finally, Freshwater testified that Middle School Principal White had instructed him to “destroy” the Tesla coil.

Freshwater recross

In answer to questions Freshwater confirmed that he didnt produce either “Finding Common Ground” or the Tesla coil in response to discovery demands for material removed from his classroom.

Freshwater re-redirect

Hamilton summarized the discovery demand, and was corrected by the judge for misstating it. There was some back and forth that I didn’t follow well.

Hamilton asked if Freshwater could recall how the pieces of the Tesla coil, broken by Freshwater and taken home and then given to Hamilton, were finally found later. Freshwater said “Oh! In your refrigerator.” Hamilton hinted “Somewhere colder.” Freshwater replied “That’s right, it was in your freezer!” The story is that Hamilton’s wife mistook the package containing the broken Tesla coil for frozen food–she had just returned from grocery shopping–and put the package containing the pieces in the freezer and they weren’t found again until someone (Hamilton’s wife? Hamilton?) retrieved the package from the freezer, possibly intending to make soup of its contents. I can make no editorial comment that would do justice to that story. I was flabbergasted by it. (OK, OK, I made up the “soup” mention, but that’s all.)

Freshwater re-recross

Mansfield noted that the discovery request covered the period when the affidavits were allegedly prepared, but did not elicit the affidavits. He also noted that in his deposition on Oct 14, 2009, Freshwater claimed that he threw the broken Tesla coil away, that “it is in a landfill somewhere.”

====================

Hamilton ended his phase of the hearing there and Mansfield called two witnesses, Steve Short, Superintendenf of Mount Vernon City Schools, and David Millstone, attorney for the Mount Vernon Board of Education in the administrative hearing.

Steve Short direct

Attorney Sarah Moore joined the plaintiffs’ table for Short’s testimony. She represents the Board of Education, retained by the Board’s insurance company, and represents Short in his capacity as Superintendent.

Short testified that Freshwater’s classroom was cleared out in mid-August 2008 because the teacher replacing him while he was suspended needed the space. Materials in the room were packed up by several custodians in a day, supervised intermittently by Short. He estimated he was in the room for more than 2 hours of the roughly four hours it took to pack the room and move the material to the district office building. He said that nothing was thrown away.

Freshwater called Short and asked for his personal possessions from the room. Short went through the material and extracted what he thought was Freshwater’s personal stuff. Freshwater came to the central office where the material was stored and Short gave him the “five armloads” of material packed in a box. Short told Freshwater that Freshwater should call if he knew of anything else that was his. Short testified that he made the inventory as he was extracting the material, and that it was an accurate representation of what he gave Freshwater.

Mansfield asked if Short gave Freshwater the ‘Bush-Powell’ poster, and he replied he did not. He testified that he gave 9 copies of “Anabolic Outlaw,” an anti-drug pamphlet with Christian material in it, to Freshwater. Mansfield walked through photographs of items that Freshwater claimed were included in the “five arm-loads” of material Short gave him. Short identified most as not having been included in what he gave Freshwater. What Mansfield was attempting to establish here is that Freshwater had considerable material from his classroom that was not given to him by Short but that Freshwater did not provide to the plaintiffs in response to discovery demands.

Short cross examination

In response to questions, Short testified that he was in Freshwater’s classroom approximately 50% to 70% of the time when the custodians were packing Freshwater’s materials. He testified that his inventory of the items he later gave Freshwater was in his own handwriting. In response to a question Short said he just didn’t put a date on his inventory.

Hamilton asked Short if he was familiar with a subpoena requesting access for Freshwater to the material from his classroom. Short replied that he was. Hamilton read from the subpoena and asked a question that Short began to answer. Sarah Moore interrupted with an objection on the ground that Short’s answer would violate attorney-client privilege. Mansfield also objected on relevance grounds. Judge Frost instructed Hamilton to establish the relevance of his question and he couldn’t, so the judge sustained the objection(s).

Hamilton asked if Short was familiar with a Public Records Request Freshwater had made. He was. Hamilton asked why Short didn’t comply with a particular part asking for inventories. Short replied, “Advice of counsel.”

Hamilton returned to the inventory, asking why Short gave Freshwater “phone books.” Short replied that there were a number of phone books in Freshwater’s room. Somehow we got onto the demonstration of ripping phone books that Freshwater did in class and that nearly occurred when the attorneys, Freshwater, and Short were going through the 16 boxes of material at the central office. On that occasion Freshwater was beginning to demonstrate it when he was stopped by one of the attorneys. Hamilton remarked to the judge that “I can imagine what this sounds like, ‘ripping phone books’.” Frost replied “It’s no stranger than Tesla coils in freezers.”

Short redirect

Mansfield noted that the inventory wasn’t dated, and asked if Short made the inventory as he was extracting items to give Freshwater, and he agreed that he did.

That ended Short’s testimony.

David Millstone direct

As noted, Millstone is the Board of Education’s attorney for the state administrative hearing. Under questioning by Mansfield he testified that during a break in the administrative hearing he and Hamilton discussed testimony about how Jeff George, a retired science teacher, used the Tesla coil, among other things permitting it to arc to his tongue. Millstone testified that Hamilton told him that Hamilton has him on tape. (Recall that such tapes were the subject of a discovery demand by the plaintiffs.)

Millstone cross

Hamilton asked Millstone if he had spoken to Jeff George. He had, sometime prior to the conversation about Hamilton having George on tape. Hamilton asked why Millstone had not called George as a witness in the administrative hearing. Millstone replied that he had nothing of relevance to testify about. Hamilton asked if Millstone had heard a tape of George. Millstone replied, “You stated to me that you had him on tape.”

Closing arguments

Both attorneys were given the opportunity to make closing statements. Hamilton went first. Basically he gave a reprise of his “truth” gig. In what would if transcribed be around three or four paragraphs, by my count Hamilton used the word “truth” 16 times (I kept track). In essence he said “We’ve told the truth.” He finished by saying “With the settlement talks now [inaudible], let this come to an end.”

Mansfield’s summation basically argued that there was no reason to reconsider the previously ordered sanctions, that Hamilton and Freshwater had not met any of the three requirements for reconsideration (new evidence, prevent egregious miscarriage of justice, a change of law).

Conclusions and commentary

Judge Frost remarked that no one wanted this to come to an end worse than he did, but that the process must take its course. He said that he would not render a decision today, but that he would do so as soon as possible. There was no clear indication of how long it will be until the judge reaches a decision on the motion to reconsider sanctions, but this judge doesn’t dilly-dally. Frost’s decision on the first motion for sanctions came just 6 days after the court hearing for oral arguments on it, the hearing that Hamilton missed due to the two flat tires.

Referring to Hamilton’s missing the May 26 hearing Gary Hurd remarked that

What I don’t understand is why Hamilton could not find a rental car, a bus, or a taxi. Is Ohio peculiarly lacking in public transportation? If I had to get my ass to a courtroom, I would find a way.

At some point in these proceedings (I didn’t make a note of it as it occurred so I don’t know when) Mansfield said almost exactly the same thing without using the word “ass”. Hamilton didn’t look at him.

I have no idea how Judge Frost will rule. I simply don’t know how strong a case must be in order for a federal judge to impose the sanctions requested by the plaintiffs or grant a motion for reconsideration. The plaintiffs clearly established that there is considerable fuzz surrounding the billing records, that there is material that was not produced in discovery (even in response to a granted motion to compel), and that there are multiple versions of what happened to some of the material. In his summation Hamilton said that part of what the Court will have to decide is credibility. Judge Frost responded “That’s the way it always is in court.”

Finally, Judge Frost made a remark to Hamilton to the effect that Hamilton’s quotation of Thomas Jefferson (see here) may not mean what he thinks it means, and Frost gave Hamilton a slip of paper that apparently gave the quotation in context. This was almost inaudible and occurred as the hearing was ending, but I checked with another person who was present who heard it the same way I did. I don’t know if Frost also caught the Biblical reference Hamilton used.

Administrative hearing note

The deadlines for the briefs in the administrative hearing have already slipped. The briefs are now due Aug 9, with replies due Aug 16.

For latecomers

Annotated index of Freshwater posts

95 Comments

Thanks RBH for the update, I doubt I’m the only one who follows this theater of the macabre with jaw dropped. When I read your updates I’m amazed at how bizarre these proceedings are…if a manuscript was submitted to Hollywood it would be rejected as too unbelievable.

Two thoughts come to mind.

I believe you (RBH)have previously mentioned that you thought Freshwater had generally been a good teacher. This seems at odds with his testimony in various places. Even Hamilton characterizes it with “John Freshwater is not an artful speaker …” Testifying, especially under the tutelage of Hamilton, combined with his situation, may have caused his skills to diminish.

Also, this statement seems to be part of a pattern on Hamilton’s part to place his client on a path with a public conveyance. Especially if sanctioned by Judge Frost, I would think the state bar association would want to take serious notice. I would certainly consider representing myself before hiring Hamilton, despite the old aphorism.

Cronk is right. I’ve been following this case for years and my jaw has dropped.

With the Judges’ comment, ‘no stranger than tesla coils in freezers’ I’m willing to bet handsomely the judge will uphold the sanctions.

I rememeber Judge Jones replying to some comment from the defense council at Dover referring to Noah, the Flood, and the ending of the forty day case with the words, ‘Aah yes but it was not intelligently designed.’:)

Thanks Dick.

I’ll reread these in the Am, but methinks somebody is in deep shit.

A judge with a baloney detector, and not afraid to use it, and laugh at baloney sandwiches. Not a good sign for people with baloney.

A landlocked parcel offered as payment!!! Unbelievable. I’m glad to see that the judge has a sense of humor but is commanding as well.

Freshwater’s lawyer Hamilton went on to disparage Freshwater’s verbal skills, saying that “an attorney can’t demand that a client be artful in his presentation” and that Freshwater isn’t particularly articulate: “John Freshwater is not an artful speaker by any stretch of the imagination.”

Hamilton is supposed to be helping Freshwater keep his job as a teacher? And Freshwater is paying Hamilton for this sort of abuse?

Cronk is right - this would be an utterly unbelievable script.

I hope the Bar Association is keeping up with Hamilton’s continuing shenanigans.

Excellent work, as always, Richard. Thanks.

Shorter summary:

Judge Frost = Leonato

R. Kelly Hamilton = Dogberry

John Freshwater = Verges

Well this may be a rude wake up call for these jokers, that lying for Jesus isn’t going to fool anyone. All of their delaying and evasion has cost others dearly and it’s time for them to face the consequences of their actions. Even if, by some miracle, the judge doesn’t force them to pay the sanctions, I’m sure that everyone will now be able to see the hypocricy and duplicity that has led them to this apocalypse.

DS said:

Well this may be a rude wake up call for these jokers, that lying for Jesus isn’t going to fool anyone. All of their delaying and evasion has cost others dearly and it’s time for them to face the consequences of their actions. Even if, by some miracle, the judge doesn’t force them to pay the sanctions, I’m sure that everyone will now be able to see the hypocricy and duplicity that has led them to this apocalypse.

Unfortunately, as far back as I can remember into the 1960s, these scam artists have managed to shunt the costs of their meddling off onto everyone else. That has happened in every state, to every school board, to every state board of education.

They provoke wars and lawsuits that other people, particularly taxpayers, pay for. As far as I can tell, they have never missed in this tactic.

You can be damned sure it is a conscious tactic on their part.

Mike Elzinga said:

They provoke wars and lawsuits that other people, particularly taxpayers, pay for. As far as I can tell, they have never missed in this tactic.

You can be damned sure it is a conscious tactic on their part.

And hopefully, one that is about to backfire on them big time.

DS said:

Mike Elzinga said:

They provoke wars and lawsuits that other people, particularly taxpayers, pay for. As far as I can tell, they have never missed in this tactic.

You can be damned sure it is a conscious tactic on their part.

And hopefully, one that is about to backfire on them big time.

Well, this has already cost the Mt. Vernon City schools over $700K with the referee’s bill yet to be received, so in that sense Mike’s thought is supported. However, Freshwater is also on the hook for substantial fees to Hamilton, and depending on how the judge rules on the matter in this hearing will be on the hook for more to the plaintiffs’ attorney, as will Hamilton.

I still think it’s interesting (and telling) that while the judge’s earlier order instructed Freshwater and Hamilton to pay $28K+ to the plaintiffs’ attorney, it was Freshwater putting up his land for it while Hamilton put up nothing.

So, Hamilton’s wife, or Someone, put an unlabeled package in the freezer.

Srsly. We’re supposed to believe that?

Oh, yeah, Freshwater wrapped it in butcher paper, stuck on a Kroger’s label and called it macaroni!

Paul Burnett said: Hamilton is supposed to be helping Freshwater keep his job as a teacher? And Freshwater is paying Hamilton for this sort of abuse?

Yeah, that’s what gets me too. Freshwater seems to be going out of his way to damage his own reputation in order to help Hamilton.

The two that really baffle me are the claim to have never seen his own tax filings (for that year) and the claim that he might signed a lien on his house over to Hamilton without an actual bill, just based on a verbal agreement. Wow.

Did very much of what they spoke about have anything to do with what the hearing was supposed to be about. It really doesn’t seem like it! He says it’s just him (Freshwater) and Hamilton. What about the old and the new insurance appointed lawyers? Does he not consider them on his side?

Here’s one possible reason for the particular strategy Hamilton adopted… which was to shift blame toward the client. I emphasize that I am inferring this based on general knowledge, not any conversations or other evidence of any kind.

The standard is substantially higher to impose sanctions on the client than on counsel, in discovery or otherwise. This is sort of like trying to convince an opponent to shift fire from exposed infantry to a moderately well-armored vehicle. Sometimes it works to reduce casualties, particularly to the infantry. In this instance, though, it’s not just that the armor is rusty; it’s that Hamilton (the infantry) and Freshwater (the APC) have, with their own actions, handed their opponents current-generation antitank missiles with unlimited artillery support. Thus, in a way Hamilton’s actions make sense, if you can treat them sterilely and out of context.

The standard on a motion for reconsideration, however, is too high for any of the above to make a difference. Hamilton must demonstrate that either (a) Judge Frost misread the law or that relevant legal authority has undermined authority that Judge Frost relied upon in imposing sanctions (short answer: no); (b) new factual material that could not reasonably have been presented at the initial hearing has become available that makes the initial ruling untenable (short answer: nice try, but RBH’s summary above doesn’t even come close for an initial hearing, let alone reconsideration); or (c) some combination of the above indicating that the nature — not the fact — of the sanctions was unjust (short answer: some chance of reducing or shifting the sanctions, but I don’t see them disappearing entirely).

And as an aside to a comment above: It doesn’t matter what the American Bar Association thinks of this. The ABA has exactly zero authority; lawyers are licensed and regulated state by state. As stupid as that is, that’s the way it is. For example, when I have appeared in matters in the Southern District of Ohio in the past, I have had to file a motion to appear for that particular matter (pro hac vice, often abbreviated in slang as “pro-hac”). So, instead, any complaint about Mr Hamilton will go to the Ohio bar authorities, which in turn (in Ohio) are a “committee” of the Supreme Court of Ohio.

I recall hearing some sort of investment advice about not throwing good money after bad; this pair could have used that nugget. “Your Honor, I would like to argue that your previous decision was wrong, by repeating my previous argument in greater detail.” If Hamilton is at all competent, he’s trying to set up for an appeal; otherwise, this makes no sense.

First rule of holes: “When you find yourself in one, stop digging.”

MrG said:

First rule of holes: “When you find yourself in one, stop digging.”

First rule of court, when you have violated the constitution, don’t make it worse by adding perjury, contempt of court, conspiracy, etc. It kind of makes the martyr ploy a little unconvincing.

Some people dig a bit more energetically than others, and have more difficulty figuring out when to stop.

MrG said:

Some people dig a bit more energetically than others, and have more difficulty figuring out when to stop.

It must be the rotational inertia of the shovel glued to their hands.

Mike Elzinga said:

It must be the rotational inertia of the shovel glued to their hands.

Coupled with a certain amount of inertia between the ears.

Ohno, getting into a physics geek joke contest!

Whilst power-washing the driveway this afternoon I was thinking about the difference between Hamilton’s interests in the hearing Thursday and Freshwater’s interests, and whether that difference had any significant effect on the advice Hamilton gave his client. It clearly did.

I described the most striking incident of that above in the OP:

Hamilton asked Freshwater if it was all right if the judge reviewed the four fee agreements in camera. They are protected by attorney-client privilege and Hamilton was asking Freshwater for a limited waiver of that privilege. The judge asked Mansfield if he had any objection, and Mansfield replied that he didn’t object so long as he also could review them in confidence. The ground here is that those agreements may have evidentiary implications, and not allowing one side to see them while the judge does see them would be unfair to the plaintiffs. The judge asked Freshwater if he objected to Mansfield seeing them, and Freshwater replied that he did object.

Hamilton interjected that he was “in a strange position” being both Freshwater’s attorney in the proceeding but also being there “in my own interest.” The judge replied “That’s by your own doing, Mr. Hamilton.”

Hamilton then said that “I cannot in my own interest advise John Freshwater to waive attorney-client privilege” in this respect. The judge said to give him the four agreements in a sealed envelope and that “the Court will consider the matter.” (Emphasis added)

In other words, Hamilton would not advise Freshwater based on Freshwater’s best interests, but rather Hamilton’s advice was conditioned on his own best interests. That was truly a ‘Client, meet bus’ moment. For Hamilton, his own self-interest comes before his client’s.

DS said: First rule of court, when you have violated the constitution, don’t make it worse by adding perjury, contempt of court, conspiracy, etc. It kind of makes the martyr ploy a little unconvincing.

Actually I credit creationists with discovering an all new “zeroeth law” of court. It is closely related to yours, but is more broad than just constitution and fraud. Now, anyone else would have assumed this law to be a law without actually testing it, but nooooo, creationists had to go out and test it. Twice. Anyway, here it is:

Never lie to a judge in a bench trial. It really pisses them off.

It makes me wonder what Hamilton really knew about Freshwater when he agreed to represent him.

Freshwater seems very similar to a character I know personally who caused the school he taught at all kinds of trouble (and got tenure anyway; go figure).

The more this character got pinned down about his behavior, the more bizarre his responses got. Why the administration caved in to his political threats is also something that doesn’t add up. Administrators are such cowards sometimes.

eric said:

Never lie to a judge in a bench trial. It really pisses them off.

I could not think of any sort of person who would be a worse bet to try to con than a judge. They’re used to baloney, they see through it very easily, and they don’t like it.

Mike Elzinga said: It makes me wonder what Hamilton really knew about Freshwater when he agreed to represent him.

That question was discussed way back somewhere near the beginning of the administrative hearing. I recall that in questioning Freshwater, Hamilton said (well, he asked Freshwater if he agreed) that they talked for some time before Hamilton agreed to represent Freshwater, and that he (Hamilton) was satisfied that Freshwater’s theology was acceptable or orthodox or words to that effect. He said nothing that I recall about Freshwater as a person in that context.

Mike Elzinga said:

It makes me wonder what Hamilton really knew about Freshwater when he agreed to represent him.

It makes me wonder what Freshwater really knew about Hamilton.

Because as much as I think F. is in the wrong, it seem to me that Hamilton is much more of a player than F. is. Freshwater seems to have lied about a few things but has yet to cadge on to the fact that someone who professes his own faith (his lawyer) could be doing him wrong. H., OTOH, seems perfectly comfortable with stabbing someone in his faith in the back.

Nebbermind. I just received a copy of the judge’s ruling issued today. He denied the motion for reconsideration. I’ll have more in a new post in a little while.

I look forward to it!

Hamilton is way out of his depth here. He’s aw-shucked himself into a real mess. Time for a trip to the woodshed.

RBH said:

Nebbermind. I just received a copy of the judge’s ruling issued today. He denied the motion for reconsideration. I’ll have more in a new post in a little while.

Doesn’t waste time does he?

RBH said:The sanctions were imposed following a hearing on May 26, the one that Hamilton missed due, he said, to two flat tires. This hearing on July 29 was on Hamilton’s and Freshwater’s motion to reconsider those sanctions. Is the burden of proof the same for that?

In a formal sense, the burden of proof is the same for sanctions, whether or not on reconsideration. However, the burden of proof on reconsideration of any ruling is ordinarily somewhat (nonquantifiably, and probably even not by rule) a bit higher. Remember, when a judge grants a motion for reconsideration he is saying “I made a mistake the first time around;” that’s why one can’t just repeat everything that was said the first time around and expect the judge to change his mind, but must instead show a specific mistake of law or fact.

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This page contains a single entry by Richard B. Hoppe published on July 30, 2010 10:46 PM.

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